Scarlet v. Sabam case: background – the facts and the main proceedings

On 24 June 2004, the Société belge des auteurs compositeurs et éditeurs (SABAM) brought interlocutory proceedings pursuant to the Belgian Law of 30 June 1994 on copyright and related rights before the President of the tribunal de première instance de Bruxelles (Court of First Instance, Brussels) seeking an injunction against Scarlet Extended SA, an ISP.

SABAM claimed that Scarlet, as an ISP, was ideally placed to take measures to bring to an end copyright infringements committed by its customers, internet users who unlawfully download works in its catalogue by means of peer-to-peer software without paying royalties, a practice from which Scarlet benefited since they are likely to increase the volume of its traffic and, hence, the demand for its services.

SABAM sought, first, a declaration that the copyright in musical works contained in its repertoire had been infringed, in particular the right of reproduction and the right of communication to the public, owing to the unauthorised sharing, through the services provided by Scarlet, of electronic music files by means of peer-to-peer software. SABAM also claimed that Scarlet should be ordered, on pain of a penalty payment, to bring such infringements to an end by blocking, or making it impossible for its customers to send or receive in any way, files containing a musical work without the permission of the rightholders, using peer-to-peer software. Finally, SABAM called for Scarlet to provide it, within eight days of service of the judgment on pain of a periodic penalty payment, with details of the measures adopted, to publish a message on the homepage of its website and to publish the judgment in two daily newspapers and a weekly newspaper of its choice.

By judgment of 26 November 2004, the President of the tribunal de première instance de Bruxelles found that copyright had been infringed as claimed. However, before ruling on the application for cessation, he appointed an expert to examine whether the technical solutions proposed by SABAM were technically feasible, whether they would make it possible to filter out only illicit file sharing and whether there were other ways of monitoring the use of peer-to-peer software, and also to determine the cost of the measures envisaged.

On 29 January 2007, the expert appointed submitted his report. On the basis of that expert’s report, on 29 June 2007 the President of the tribunal de première instance de Bruxelles gave a second judgment, by which he ordered Scarlet to bring the copyright infringements established in the judgment of 26 November 2004 to an end by making it impossible for its customers to send or receive in any way, by means of peer-to-peer software, electronic files containing a musical work in SABAM’s repertoire, on pain of a penalty payment of EUR 2 500 per day should Scarlet fail to comply with the judgment, after the expiry of a period of six months.

Scarlet brought an appeal against that judgment before the cour d’appel de Bruxelles (Court of Appeal, Brussels) on 6 September 2007. Scarlet also brought proceedings before the President of the tribunal de première instance de Bruxelles on 7 December 2007 for the removal, or at least the suspension, of the periodic penalty payment ordered against it. Scarlet claimed that it was both substantively and temporally impossible for it to comply with the injunction, since the Audible Magic system was not operational and it had not been established that it was technically feasible for an internet service provider to block or filter peer-to-peer traffic.

The President of the tribunal de première instance de Bruxelles dismissed that action by decision of 22 October 2008, holding that the effect of the appeal prevented the parties from setting out their cases again before him. He acknowledged that the Audible Magic solution had not been successfully introduced but he noted that Scarlet had not tried any other filtering or blocking solutions and that it had not, therefore, shown that it was impossible to comply with the injunction. Nevertheless, he suspended the periodic penalty payment until 31 October 2008, in order to enable Scarlet to explore other means. In those circumstances, the cour d’appel de Bruxelles decided to stay the proceedings and to refer the questions to the Court for a preliminary ruling.